ASSET PROTECTION: An Overview of Prudently Managing and Structuring One’s Assets

by Robin P. Jamplis, Esq.^*

Due to the litigious nature of our society and the onslaught of frivolous lawsuits, asset protection has become a major concern for many individuals. Asset protection involves structuring one’s assets in such a manner as to preserve and protect their value as much as possible in light of a future creditor attack. Generally this involves establishing structures primarily for estate or business planning reasons which also are designed to reduce the risk of future and unforeseen creditors from reaching the assets held in these structures. Such planning is well advised and should be an integral part of judiciously managing one’s assets.

Asset protection is interdisciplinary and involves a myriad of legal rules and practices, including business, estate planning, litigation, family law, bankruptcy and creditor’s remedies. This article provides an overview of the options and techniques available to a prudent person concerned with protecting his or her assets, including business structures, trusts, outright gifting, retirement plans, insurance, and bankruptcy and non-bankruptcy exemptions. The appropriateness of the various methods available depends on the facts and circumstances of the individual as discussed further below. This article also addresses the issue of fraudulent conveyance, which is a threshold question in proceeding with any asset protection planning. Laws regarding asset protection vary state to state. This article focuses primarily on California law.

The discussion is organized as follows: